CONROY and SECRETARY, DEPARTMENT OF DEFENCE
[2010] AATA 581
•6 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 581
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/1046
GENERAL ADMINISTRATIVE DIVISION ) Re BARRY CONROY Applicant
And
SECRETARY, DEPARTMENT OF DEFENCE
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date6 August 2010
PlaceBrisbane
Decision The Tribunal sets aside the decision under review and remits the matter to the Secretary to consider the application dated 30 October 2009 by Warrant Officer Barry Conroy for assistance under the Defence Home Ownership Assistance Scheme in accordance with the direction that the applicant is “a member of the Defence Force” for the purposes of s 17(1)(c) of the Defence Home Ownership Scheme Act 2008 (Cth). ...............[Sgd]...............................
Senior Member
CATCHWORDS
DEFENCE – Defence Home Ownership Assistance Scheme – Application for Subsidy Certificate – Whether the applicant as a member of the Army Reserve is a member of the Defence Force – Applicant held to be a member of the Defence Force – Decision under review remitted.
Defence Act 1903 (Cth) Div 1, Pt 3, s 32A
Defence Home Ownership Scheme Act 2008 (Cth) ss 5, 12, 14, 16, 17, 44, 45, 71, 73, 75, 76
Millar v Bornholt (2009) 257 ALR 263
REASONS FOR DECISION
6 August 2010 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Warrant Officer Barry Conroy (the applicant) is a reservist in the Australian Army. He has been previously granted financial assistance under the Defence Home Ownership Assistance Scheme and has made a further application for assistance under that Scheme. He seeks the review of a decision by a delegate of the respondent to confirm the refusal of further assistance under that Scheme. The sole issue that I have to decide is whether the applicant at the time of making his application for further assistance was a member of the Defence Force. In my opinion, for the following reasons, he was at that time a member of the Defence Force.
REVIEWABLE DECISION
2. Part 5 of the Defence Home Ownership Scheme Act 2008 (Cth) (the Act) deals with the review of decisions.
3. Section 71 of the Act provides for the internal review of reviewable decisions. That section provides that each of the decisions mentioned in that section are reviewable decisions. Item 2 of the table of reviewable decisions which is contained in that section refers to a decision “to refuse to give a subsidy certificate” which is made under s 16(3) of the Act.
4. Section 73 of the Act requires the Secretary to take such steps as are reasonable in the circumstances to give notice in writing, to each person whose interests are affected by a reviewable decision, of: the making of the decision; and the person’s right to have the decision reviewed under Part 5 of the Act which provides for the making of an internal review decision.
5. An internal review decision is made under s 75 of the Act. On 12 February 2010, the delegate of the Secretary (the delegate) made an internal review decision confirming the decision of the Department of Veterans’ Affairs (DVA) to refuse to give a subsidy certificate to the applicant under the Defence Home Ownership Assistance Scheme. This internal review decision of the delegate was made pursuant to s 75(2) of the Act.
6. Section 76 of the Act provides that an application may be made to this Tribunal for review of an internal review decision, and it is that internal review decision which is subject to review by this Tribunal: see s 76(1).
BACKGROUND
7. At the hearing, the applicant gave evidence of his service in the Australian Army. He was a permanent member of the Australian Army from 1988 until 2008 when he transferred to the Reserves. The evidence before me is that the applicant has rendered distinguished service to his country in a number of operational roles.[1]
[1] Certificate of Service, 24 April 2009, fol 81.
8. On 14 July 2008, the applicant was granted a subsidy certificate under s 14 of the Act. There is no issue concerning his entitlement to that certificate.
9. On 30 October 2009, the applicant made an application for a further subsidy certificate. On 2 November 2009, the DVA made a decision to refuse to give him a subsidy certificate.
10. The evidence of the applicant is that he was advised by the DVA that he had one opportunity within two years of his separation to transfer the loan. He accordingly sold the home which was the subject of the subsidy certificate that was granted on 14 July 2008. The delegate has quite properly recognised that the applicant had been provided that advice.[2] The applicant stated that he relied upon that advice to his detriment in selling his home which was the subject of the subsidy certificate that he was granted to him in 2008.
[2] T2, fol 6.
SUBSIDY CERTIFICATES
11. Part 3 of the Act deals with subsidy certificates.
12. Section 14 of the Act provides that a person may apply to the Secretary for a subsidy certificate: s 14(1). An application must be in the approved form: s 14(2).
13. If a person applies for a subsidy certificate in accordance with s 14 (that is, in the approved form) then the Secretary may make a decision under s 16(2) of the Act whether to give or refuse to give a subsidy certificate: s 16(1) and (2). Subsection (2) of s 16 provides that the Secretary is required in certain circumstances to give a subsidy certificate to the applicant. The parts of that subsection that are material to this application provide that the Secretary must give a subsidy certificate in a case where s 17 of the Act applies and the applicant has a service credit. The Secretary must refuse to give a subsidy certificate to the applicant if subsection (2) does not apply: s 16(3).
14. Subsection (1) of s 17 provides that, subject to that section, the Secretary must give a subsidy certificate to the applicant if the Secretary is satisfied that the applicant:
(a)is eligible; and
(b)does not hold a subsidy certificate that is in force; and,
(c)if the person is not a member of the Defence Force – has not previously applied for a subsidy certificate since he or she has stopped being a member of the Defence Force.
15. The Secretary has submitted that the correct or preferable decision in this application was, and remains to be, to refuse to give a subsidy certificate to the applicant.
16. The argument of the Secretary is based upon the contention that the applicant “at the time of application was not a member of the Defence Force pursuant to section 5 (for the purposes of the Scheme) and had already applied for a subsidy certificate since he stopped being a member of the Defence Force (see section 17(1)(c)”.[3]
[3] Respondent’s Statement of Facts and Contentions, 28 May 2010, para 9.
CONSIDERATION
17. The Secretary has submitted that the “only relevant issue for this Tribunal to decide is whether the Applicant stopped being a member of the Defence Force for the purposes of this Scheme”.[4] The prior decisions have treated the applicant as not being a member of the Defence Force at the time when he made his application for further assistance. I therefore consider that this is appropriate for me to decide this issue that was outlined by the Secretary. My reasons have focused upon the evidence and law that I consider is relevant to that issue. As a matter of procedural fairness to both parties my decision will therefore focus upon whether for the purposes of the Act the applicant was on 30 October 2009 a member of the Defence Force.
[4] Respondent’s Statement of Facts and Contentions, 28 May 2010, para 13.
18. The original decision of the DVA on 2 November 2009 was made on the assumption that the applicant had “stopped being a member of the ADF.”[5] The delegate in the internal review decision which is under review has referred to the applicant as a “separated member”[6]. The expression “separated member” is to be found in s 12 of the Act to refer to persons who on or after 1 July 2008, stopped being a member of the Defence Force. It was certainly after that date, on 7 July 2008, that the applicant had transferred to the Reserves. However, the applicant had, in my opinion, remained a member of the Defence Force after that date.
[5] T8, fol 92
[6] T2, fol 7
19. The delegate in the reasons for his internal review decision has relied upon the terms of s 17(1)(c) of the Act. I have already mentioned that the provision is applicable “if an applicant is not a member of the Defence Force”.
20. The submission of the Secretary is that at the time of his application the applicant “was not a member of the Defence Force pursuant to section 5”. I am of the opinion that s 5 of the Act has no application as to whether a person is to be treated as a member of the Defence Force.
21. The expression “Defence Force” is not defined in the Act. In my view, to understand that expression it is necessary for me to have regard to the Defence Act 1903 (Cth). Division 1 of Part III of the Defence Act 1903 (Cth) concerns the “Constitution of the Defence Force”. Division 1 includes s 32A of the Defence Act 1903 (Cth) which provides that the Army Reserves consists of inter alia officers and soldiers transferred to the Army Reserve from the Regular Army.
22. In evidence is a Discharge or Transfer Certificate that was issued on 19 March 2008[7]. That certificate is evidence of the transfer of the applicant to the Reserves under regulation 56 of the Defence (Personnel) Regulations 2002; the certificate provides for the transfer to be effected on 7 July 2008. That regulation provides that a member may apply to the Chief of the member’s Service for permission to transfer from the Permanent Force of that Service to a category of the Reserves for that Service. The certificate is evidence of the approval of the transfer of the applicant to the Reserves. The applicant has also given evidence that he has transferred to the inactive Reserves. There is certainly no evidence before me that the service of the applicant has been terminated under Defence (Personnel) Regulations[8]. Having regard to the evidence before me, I find that the applicant when he made his application on 30 October 2009 was a member of the Defence Force.
[7] T7, fol 82
[8] See Millar v Bornholt (2009) 257 ALR 263 at 282 [72] per Logan J
23. Having found that the applicant was on 30 October 2009 a member of the Defence Force I will now consider whether the status of the applicant as a member of the Defence Force is displaced by the operation of the Act. The Secretary has also submitted that upon transferring to the Reserves on 7 July 2008 the applicant “also ceased to be a member of the Reserves (and therefore the Defence Force) for the purposes of this Scheme, pursuant to section 5 of the Act”.[9]
[9] Respondent’s Statement of Facts and Contentions, 28 May 2010, para 14.
24. I have taken the view that the purpose of s 5 is to enable the Secretary to vary the authorisation of subsidy to a member under s 45 of the Act. In my opinion the terms of s 5 does not operate to deem an applicant to be no longer be a member of the Defence Force. The commentary to clause 5 of the Defence Home Ownership Assistance Scheme Bill 2008 (Cth) makes it clear that the operation of clause 5 of the Bill is for “the purpose of the Scheme” and that the provision does not end a person’s “engagement in the Reserves”[10].
[10] Defence Home Ownership Assistance Scheme Bill 2008 (Cth) Explanatory Memorandum p 5.
25. For the sake of completeness, I should mention that during the hearing the Secretary quite properly advised the applicant of his possible eligibility as a rejoining member. The applicant has however mentioned that he would not make such an application. He mentioned that there would be some difficulty in obtaining training days.
26. I consider that in this instance it is appropriate to set aside the decision under review. Because of the operation of s 75(2) of the Act, that decision is the decision of the delegate which was made on 12 February 2010. The reasons of the delegate, in referring to s 17(1)(c) of the Act, contain the following remarks: “This provision stipulates that eligible separated members can apply for one Subsidy Certificate only within the two years after discharging from the ADF”.[11] These reasons reveal that an assumption that on 30 October 2009 the applicant had been discharged from the Defence Force when that is, on my view of the evidence, not the case.
[11] T2, fol. 7.
DECISION
27. I set aside the decision under review and remit the matter to the Secretary to consider the application dated 30 October 2009 by Warrant Officer Barry Conroy for assistance under the Defence Home Ownership Assistance Scheme in accordance with the direction that the applicant is “a member of the Defence Force” for the purposes of s 17(1)(c) of the Defence Home Ownership Scheme Act 2008 (Cth).
I certify that the 27 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ................[Sgd].............................................................
Kate Slack, Research AssociateDate/s of Hearing 8 June 2010
Date of Decision 6 August 2010
Applicant was self-represented
Solicitor for the Respondent Michael Palfrey, Clayton Utz
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